Rajan

THE RELEVANCE OF WEDNESBURYUNREASONABLENESS IN THE LIGHT OFPROPORTIONALITY AS A GROUND FORJUDICIAL REVIEW

RAJAN VARGHESE

The principle of primary review and proportionality on theone hand and the principle of secondary review andWednesbury reasonableness on the other hand gave a newdimension to Administrative Law, the former applying in thecase of fundamental freedoms and the latter, in other cases.Proportionality as a legal test is capable of being moreprecise than a reasonableness test, besides requiring a moreintrusive review of a decision made by a public authority.Judicial verdicts have not openly held that the proportionalitytest may replace the Wednesbury test. Practically what isfound is that the proportionality test is applied more andmore, when there is violation of human rights andfundamental freedom and the Wednesbury finds its presencemore on the domestic law when there are violations of acitizens ordinary rights.

THE CONSTITUTIONAL Courts in the matters of Judicial review exercisea collateral review, examining the constitutionality or the legality of adecision by an administrative authority. The reviewing Court will not gointo the correctness or otherwise of a decision, but will examine the legalityor propriety of the decision-making process by the authority. In other words,judicial review of administrative action is concerned with the lawfulnessof administrative action and not with the merits of the decision. The actualcharacteristics of judicial review that it is not concerned with the decisionbut with the decision-making process was re-emphasised by LordBrightman in Chief Constable of North Wales Police v. Evans.1

Collateral judicial review is of two types, based on the action that is

IJPA JAN -MARCH 014

1(1982) 1 WLR 1155.

THE RELEVANCE OF WEDNESBURY UNREASONABLENESS / 89RAJAN VARGHESE

being challenged under the review jurisdiction. One is against theadministrative action of the State and the other is directed against theLegislative action. Judicial review is considered to be the assertion of therule of law as controlling State action.2 The basis of judicial review ofadministrative action is primarily the lack of jurisdiction. It is a well knownaspect of judicial review that when an administrative authority is entrustedwith the power to act under a Statute or to decide a matter, the power canbe exercised only if the jurisdictional conditions3 are satisfied.Unreasonableness of decisions of administrative bodies has been held tobe a ground for judicial review since a considerable period of time ashighlighted in Associated Provincial Picture Houses Ltd. v. WednesburyCorporation4.

Wednesbury UnreasonablenessIn the initial period of development of Administrative Law, the judiciary

had shown a strong dependency on the Wednesbury unreasonableness totest the validity of administrative decision-making. In this case, the Courtheld that it could not intervene and turn down the decision of the Corporationsimply because the Court disagreed with it. The Court observed thatdiscretion must be exercised reasonably. This brings in the expression,unreasonable. The expression is frequently used as a general descriptionof things that must not be done. A person who is exercising discretionmust look into things that must be considered and not what is irrelevant.Where discretion is exercised in disregard of these guidelines one is saidto be acting unreasonably. Even judges are bound by these and otherstringent rules in exercising discretion. At this juncture the words of JusticeCardozo are noteworthy. According to him, the Judge, even when he isfree, is still not wholly free. He is not to innovate at pleasure. He is not aknight-errant roaming at will in pursuit of his own ideal of beauty or ofgoodness. He is to draw his inspiration from consecrated principles. He isnot to yield to spasmodic sentiment, to vague and unregulated benevolence.He is to exercise a discretion informed by tradition, methodised by analogy,disciplined by system, and subordinated to the primordial necessity of order

2V. S. Deshpande, Judicial Review of Legislation, Eastern Book Company, 1975, p.15.3Conditions like the existence of jurisdictional facts, improper exercise of discretionary

powers, error of law on the face of the record, etc. are in mind.4[1947] 1 KB 223. In this case, a Cinema Company, Associated Provincial Picture

Houses, was granted a licence by the Wednesbury Corporation, to operate a Cinema Theatre on condition that No children under the age of fifteen years shall be admitted to anyentertainment, whether accompanied by an adult or not. This condition was imposedunder Section1, sub Section 1 of the Sunday Entertainments Act of 1932. The PictureHouses sought a declaration that such a condition was unacceptable and outside the powerof the Corporation.

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in social life.5 If judges are bound by these stringent guidelines, what isthe extent of care to be taken by an administrative authority while exercisingdiscretionary powers?

Some actions may be so absurd that one could not envisage that it laywithin the powers of an authority. Lord Justice Warrington in Short v. PooleCorporation,6 gave the example of the red-haired teacher who wasdismissed because she had red hair. This is unreasonable in one sense andin another sense it is taking into consideration extraneous matters. It is sounreasonable that it might almost be described as being done in bad faith;and, in fact, all these things run into one another.7

Dismissing the Appeal in the Wednesbury Case, the Court summarisedthe principle applicable and observed:

The Court is entitled to investigate the action of the local authoritywith a view to seeing whether they have taken into account matterswhich they ought not to take into account, or, conversely, have refusedto take into account or neglected to take into account matters whichthey ought to take into account. Once that question is answered infavour of the local authority, it may be still possible to say that, althoughthe local authority have kept within the four corners of the matterswhich they ought to consider, they have nevertheless come to aconclusion so unreasonable that no reasonable authority could everhave come to it. In such a case, again, I think the court can interfere.The power of the court to interfere in each case is not as an appellateauthority to override a decision of the local authority, but as a judicialauthority which is concerned, and concerned only, to see whether thelocal authority have contravened the law by acting in excess of thepowers which Parliament has confided in them.8

In other words, to have the right to intervene, the Court would have toform the following conclusions:

(i) Whether the Wednesbury Corporation, in making that decision,took into account factors that ought not to have been takeninto account, or

(ii) the Corporation failed to take into account factors that oughtto have been taken into account, or

5Benjamin N. Cardozo, The Nature of the Judicial Process, Universal Law PublishingCo. Pvt. Ltd. (Indian Reprint 2002), collection of four Storrs Lectures, delivered at YaleUniversity by Justice Cardozo, Lecture III, p. 141.

6[1926] Chancery 66, at pages 90 and 91, as cited in the Wednesbury case, ibid.7Per Lord Greene MR, available at (Visited on August 16, 2012)8Ibid.


(iii) the decision was so unreasonable that no reasonable authoritywould ever consider imposing it.

The Court felt that that none of the conditions imposed by theCorporation fell into any of these categories and rejected the claim of theappellants. However, opinions are not static and hence there would bechanges in individual thinking with regard to the exercise of discretion. Soalso, law cannot be static and so are the judicially developed principles.The Wednesbury principle was no exception to this universal rule.Subsequently, jurists started to look at the principle with a bit of skepticism.9

The general criticism of unreasonableness as a basis of review is well-known and often repeated.10 These conceptual weaknesses have led toproposals for the common law to search for other substantive principles inplace of unreasonableness. The doctrine of proportionality is one of theprominent ones among them.

The Wednesbury Test Critical ViewsUnreasonableness, an apparently straight forward and simple test may

fail in objectively assessing what would amount to unreasonable. Thereis also an inherent complexity in a large amount of subjectivity playing amajor role in identifying unreasonableness. Hence, the Wednesburyprinciple was subjected to a critical juristic scrutiny examining its suitabilityas a test for administrative exercises of power. The observation of LordCooke of Thorndon in this regard is noteworthy when he observed that,

I think that the day will come when it will be more widelyrecognised that Associated Provincial Picture Houses Ltd v. WednesburyCorporation [1948] 1 KB 223 was an unfortunately retrogressive decisionin English administrative law, insofar as it suggested that there are degreesof unreasonableness and that only a very extreme degree can bring anadministrative decision within the legitimate scope of judicialinvalidation.11

9See Jowell and Lester, Proportionality: Neither Novel Nor Dangerous in J. Jowelland D. Oliver, eds., New Directions in Judicial Review (Stevens, London, 1988) p. 51.

10Some such observations are that, it is a circular definition; it is an uncertain guide asto the extent of the margin of discretion to be permitted to a public authority in anygiven situation or the intensity of review to be conducted by the Court and it is a cloakwhich may tempt lawyers and Courts to deal with the merits of grievances rather thanquestions of legality. See, Andrew Le Sueur, The rise and ruin of unreasonableness?,available at < www.adminlaw.org.uk/docs/ALBA-A Le Sueur paper ->, (Visited on July1, 2012).

11In Regina v. Secretary of State For The Home Department, Ex Parte Daly, [2001]UKHL 26, para 32.


The crux of the judicial opinion was that the depth of judicial reviewvaried with the subject matter. An individual may find an administrativedecision unreasonable, but that is not enough for the Court to strike downthat administrative action as unreasonable. It is only in those extremeand limited cases of unreasonableness, where no reasonable person canfind the decision reasonable, does the Wednesbury principle permit theCourt to interfere with the administrative decision. So much so, there canbe a large amount of subjectivity ruling the judicial mind in applying theWednesbury test. Hence, as mentioned above, jurists had to look foralternatives. A strong alternative approach was the doctrine ofproportionality.

The Doctrine of ProportionalityThe spirit of the doctrine of proportionality could be found in the ancient

Greek dictum, pan metron ariston,12 but today as a general principle oflaw, it is inspired by underpinning liberal democracy, the concern to protectthe individual against the State and an assurance that regulatory interventionmust be suitable to achieve its aims.13

The doctrine of proportionality is understood in the legal fraternity intwo different perspectives. First, under the municipal law, it refers to adoctrine which suggests that a punishment afforded to a guilty should matchthe offence.14 In this context, it may also be noted that in relation topunishment, Jeremy Bentham inspired by the work of Cesare Beccaria15,who had stressed the importance of deterrence, proportionality and certaintyin punishment and related them systematically to the principle of utility.The second one is under International Humanitarian Law, where thedoctrine refers to the use of legal force in armed conflict. It is believed thatthe concept was first applied in Prussia in the late 18th Century as the law

12The meaning of the expression pan metron ariston is more or less that, excellence isto be found in the balance and not in the size of things. The secret seems to be in theproportions and the interrelationships and not in the quantity of things. In otherwise, itmeans, everything in moderation.

13See Takis Tridimas, Proportionality in Community Law: Searching for the AppropriateStandard of Security in Evelyn Ellis (Ed.), The Principle of Proportionality in the Lawsof Europe, Hart Publishing, Portland, Oregon, (1999), p. 65.

14This approach may be explained in the field of Criminal Law with the RetributiveTheory of Punishment, i.e., An eye for an eye and a tooth for a tooth. The doctrine may beapplicable in the case of private defence also, where exceeding the right of private defenceis not judicially accepted.

15Cesare Bonesana, Marchese Beccaria, Of Crime and Punishment, originally publishedin Italian in 1764. See, Jeremy Bentham, An Introduction to the Principles of Morals andLegislation, 1781, Chapter XIV, Of the Proportion between Punishments and Offenceswhere the proportionality between crime and punishment is discussed. Available at (Visited on 30-4-2012).


was codified on Rechtsstaat16 lines. Subsequently, the German Courtsrefined it and made use of it in reviewing police action in Germany in thelate 19th Century.17 The principle of proportionality as a doctrine18 was animportant instrument in the introduction of individual rights into anauthoritarian legal system. Hence, it could be regarded as a post WorldWar II phenomenon. The doctrine of proportionality which originated inPrussia and the post World War II German Jurisprudence found a place inthe German Constitutional law. By insisting that the government chooseonly such means that are least harmful to individual rights, the use ofproportionality set a formal limitation on the exercise of police powers,thus introducing the notion of rights into German public law. In the Germanlegal system, the principle applies to legislative, judicial and administrativeactions and decisions of the State at all levels.19 As a consequence,disproportional restrictions or measures taken by administration will beconsidered illegal and voidable and illegality is not considered a repairableaction. An unbalanced, but lawful decision in German law can be void andbe repaired only by a new balanced and lawful decision.20 Accordingly,proportionality includes three conditions, viz.,

(i) The means which is applied by public authorities should beavailable to achieve the aims and should be effective or inother words, suitable.

(ii) The means should be necessary to realise the aims and shouldnot be more than what is necessary to fulfill the aim as showedin the laws.

(iii) The means which causes a burden for individuals should beproportionate to the aim.

The restriction by an administrative action and fundamental right ofan individual should be balanced and should include a clear proportionality

16Rechtsstaat means Constitutional State.17Iddo Porat and Moshe Cohen-Eliya, American Balancing and German Proportionality:

The Historical Origins, Oxford Journals, International. Journal. of Constitutional Law,Volume 8, Issue 2, pp. 263-286. See also, T. Poole, Proportionality in Perspective, LSELaw, Society and Economy Working Papers (2010). Available at (Visited on September 1, 2012).

18Dr. Ycel OURLU A Comparative Study on the Principle of Proportionality inTurkish Administrative Law, available at (Visited on 20-12- 2011).

19Kay HaIlbronner, Fifty Years of the Basic LawMigration, Citizenship and Asylum,The Fifty Years of German Basic Law Conference, The John Hopkins University, AmericanInstitute for Contemporary German Studies, September 1999.

20As referred in Adrienne de Moor-vanVugt, Proportionality in Dutch AdministrativeLaw, Tilburg Law Review Administrative Law, Vol. 7, Issue.1, 1998, p.7 at p. 8.


between the parties. In short, the gain or loss to the community which isnecessary for public interest and the loss or gains to individuals should bebalanced. The modern use of the doctrine at an International level couldbe traced to the European Union Law, under which four stages are identifiedwith proportionality.21

The European doctrine of proportionality means that, an officialmeasure must not have any greater effect on private interests than isnecessary for the attainment of its objective.22 The approach of theAmerican Supreme Court23 in this regard is that the Court would compare:

(i) the nature and gravity of the offence and the harshness of thepenalty;

(ii) the sentences imposed on other criminals in the samejurisdiction; i.e., whether more serious crimes are subject tothe same penalty or to less serious penalties, and

(iii) the sentences imposed for commission of the same crime inother jurisdictions.

In Australia, the High Court in Nationwide News Pty. Ltd. v. Wills,24

while examining the various aspects of the Australian Constitution, discussedthe concept of proportionality and explained that there should be a reasonablerelationship between the end, and the means used to achieve that end.

Peter Leyland and Gordon Anthony are of the view that,

Proportionality works on the assumption that administrative actionought not to go beyond what is necessary to achieve its desired results(in every day terms, that you should not use a sledgehammer to cracka nut) and in contrast to irrationality is often understood to bring thecourts much closer to reviewing the merits of a decision.25

21P. Craig and G de Burca, in EU Law, (5th Edn.) Oxford University Press, (2011), p.526 identifies the following:

a.there must be a legitimate aim for a measure; b. the measure must be suitable toachieve the aim (potentially with a requirement of evidence to show it will have thateffect); c. the measure must be necessary to achieve the aim, that there cannot be any lessonerous way of doing it and d. the measure must be reasonable, considering the competinginterests of different groups at hand.

22In Konninlijke Scholton-Honig v. Hoofproduktchap voor Akkerbouwprodukten. [1978]ECR 1991, p. 2003.

23Solem, Warden, South Dakota State Penitentiary v. Helm, 463 U.S. 277 (1983),available at (visited on 28-4-2012).

24(1992) 177CLR 1. Per Mason CJ, para. 15. The full judgment is available at < http://www.austlii.edu.au /au /cases/cth/HCA/1992/46.html> (Visited on 28-4-2012).

25Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford UniversityPress, (2005), p. 331.


The doctrine of proportionality emphasises that an official measuremust not have any greater effect on private interests than is necessary forthe attainment of its objective.26 It may be noted that the modern proceduraldefinition of the proportionality test is relatively clear. Tom Hickman27,while acknowledging various different models, identified the most commonformulation as a three-part procedure. According to him, the reviewingCourt must consider the following aspects:

(i) Whether the measure was suitable to achieve the desiredobjective;

(ii) Whether the measure was necessary for achieving the desiredobjective;

(iii) Whether, even so, the measure imposed excessive burdens,on the individual it affected.

The third element is often termed proportionality in the strict sense andis the provision that requires balancing of interests.28 Proportionalityrequires the Court to judge whether the action taken was really needed aswell as whether it was within the range of courses of action which couldreasonably be followed. Proportionality is more concerned with the aimsand intention of the decision-maker and whether the decision-maker hasachieved more or less the correct balance or equilibrium. The Courtentrusted with the task of judicial review has to examine whether thedecision taken by the authority is proportionate, i.e., well balanced andharmonious and to this extent the Court may indulge in a merit review andif the Court finds that the decision is proportionate, it seldom interfereswith the decision taken and if it finds that the decision is disproportionate,i.e., if the Court feels that it is not well balanced or harmonious and doesnot stand to reason it may tend to interfere.

In short, the principle of proportionality envisages that an administrativeaction could be quashed by a reviewing Court, if the action wasdisproportionate to the mischief which was sought to be remedied. Themeasures adopted by the administration must be proportionate to theobjective to be achieved. In other words, it is the duty of the administrationto choose its actions so as to safeguard the rights of citizens and to ensurea fair balance between individual rights and public interest. Proportionalityas a legal test is capable of being more precise than a reasonableness test,besides requiring a more intrusive review of a decision made by a publicauthority by which the Courts have to assess the balance or equationstruck by the decision-maker. Juristic thought has moved in favour of

26See Konninlijke Scholton-Honig v. Hoofproduktchap voor Akkerbouwprodukten, supra.27Tom Hickman, Proportionality: Comparative Law Lessons, [2007] Judicial

Review 31.28Ibid.


proportionality as a correct test for judicial review as against theWednesbury principle. Jurists prediction about the future of this test maybe seen in the observation by Wade and Forsyth that the Wednesburydoctrine is now in terminal decline but the coup de grace has not yet fallen,despite calls for it from very high authorities and further opined that insome jurisdictions the doctrine of unreasonableness was giving way to thedoctrine of proportionality.29

Deviation from Wednesbury to ProportionalityThe English ExperienceThe Courts while exercising the power of judicial review examined

administrative decisions for any unreasonableness. As mentioned earlier,the Wednesbury principle was the primary rule which governed judicialreview for a long time in the commonwealth countries and other countriesin the world. Lord Greene MR held that30 unreasonableness was an umbrellaconcept and pointed out that the Court could interfere with a decision if itis so absurd that no reasonable decision-maker would come to such adecision. Subsequent to the Wednesbury case, in Mahon v. Air NewZealand,31 in answering a question relating to the quality of material tosupport a finding by an authority Lord Diplock while delivering thejudgement of the Privy Council opined that a finding must be based onsome material which tends logically to show the existence of facts consistentwith the finding and that the reasoning supportive of the finding, if it bedisclosed, is not logically self-contradictory.32

The decision in the Wednesbury case and the said principle continueduntil the GCHQ case,33 which gave a new dimension34 to judicial review.

29HWR Wade and CF Forsyth, Administrative Law,( 9th Edition), (2004), pp 371- 372with the caption Goodbye to Wednesbury.

30In Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1947] 1KB 223.

31(1984) 3 All ER 201;[1984]AC 808. In this case, an Air New Zealand sightseeingFlight collided with Mount Erebuson in Antarctica, killing all 237 passengers and 20 crewon board, on November 28, 1979, commonly known as the Mount Erebus disaster. ARoyal Commission of Inquiry was ordered under the chairmanship of Justice Peter Mahon.The Court was of the view that the observation/finding of the Commission that, a plan ofdeception through destruction of documents, was a breach of procedural fairness as therewas no probative evidence for such an observation.

32[1984]AC 808, p. 821.33Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374;

[1984] 3 All ER 935, popularly known as the GCHQ case as the case related tothe Government Communications Headquarters (GCHQ) a British intelligenceagency responsible for providing signals intelligence and information assurance to theUK Government and armed forces.

34The Court found that exercises of the Royal Prerogative were generally subject tojudicial review, with certain exceptions such as matters of national security. This was asignificant break from the previous law, which was that prerogative powers were not inany way subject to judicial review.


Lord Diplock classified the following three grounds on whichadministrative action would be subject to judicial review, viz., (i) Illegality,(ii) Irrationality and (iii) Procedural impropriety.35

Lord Diplock explained the meaning of the aforesaid terminology inthe decision and explained Irrationality thus:

By irrationality I mean what can now be succinctly referred to asWednesburys unreasonableness It applies to a decision which isso outrageous in its defiance of logic or of accepted moral standardsthat no sensible person who had applied his mind to the question to bedecided could have arrived at it.36

While relying on the above principle Lord Diplock did not rule out thepossibility of future developments. He said:

further development on a case by case basis may in course of timeadd further grounds. 1 have in mind particularly the possible adoptionin the future of the principle of proportionality which is recognisedin the administrative law of several of our fellow members of theEuropean Economic Community ; but to dispose off the instant casethe three already well-established heads that I have mentioned willsuffice.37

It may be noted here that the Courts in England could not expresslyapply proportionality in the absence of a Convention but tried to safeguardthe rights zealously by treating the said rights as basic to Common Lawand the Courts then applied the strict scrutiny test. This development couldbe seen in R. v. Secretary of State for the Home Department ex parte Brind.38

The House of Lords re-examined the reasonableness of a notice issued bythe Home Secretary banning the transmission of speech by representativesof the Irish Republican Army and its political party, viz., Sinn Fein. Exerciseof the Home Secretarys power according to the Court did not amount toan unreasonable exercise of discretion despite the issue involving a denialof freedom of expression. The House of Lords emphasised that in all casesraising a human rights issue proportionality is the appropriate standardof review. The extent of prohibition was linked with the direct statementmade by the members of the organisations. It did not however, precludethe broadcasting by such persons through the medium of a film, provided

35Referred to as the triple I s.36[1984] 3 All ER 935 at 951.37Ibid.38(1991) 1 All ER 720; [1991] 1 AC 696. Read from


there was a voice-over account, paraphrasing what they said. Theapplicants claim was based directly on the European Convention of HumanRights. Lord Bridge noticed that the Convention rights were not stillexpressly engrafted into English Law but stated that freedom of expressionwas basic to the Common Law and that, even in the absence of theConvention, English Courts could go into the question.

Another significant contribution of this case to the Administrative Lawwas the introduction of the concept of Primary and Secondary reviewsby Courts. Lord Bridge observed that where the Convention rights were inquestion the Courts could exercise a right of primary review. However, theCourts would exercise a right of secondary review based only on theWednesbury principles in cases not affecting the rights under theConvention. Adverting to cases where fundamental freedoms were notinvoked and where administrative action was questioned, it was said thatthe Courts were then confined only to a secondary review while the primarydecision would be with the administrator. Lord Bridge explained the primaryand secondary review as follows:

The primary judgment as to whether the particular competing publicinterest justifying the particular restriction imposed falls to be made bythe Secretary of State to whom Parliament has entrusted the discretion.But, we are entitled to exercise a secondary judgment by asking whether areasonable Secretary of State, on the material before him, could reasonablymake the primary judgment.39

Again, the principle of proportionality and the primary role of theCourts where fundamental freedoms were involved were further developedby Simon Brown LJ in the Divisional Court in R. v. Ministry of Defence.Exp. Smith.40 Adverting to the primary role of the Court in cases of freedomsunder the Convention, the learned Judge observed:

39Ibid. 40(1996) Q.B. 517 at 541. The four appellants in this case, a lesbian and three homosexual

men, were administratively discharged from the respective armed forces in which theyserved pursuant to a Ministry of Defence policy. The policy, made jointly by the threearmed services in the exercise of prerogative powers, prohibited homosexual men andwomen from serving in the armed forces and required the discharge of any serviceman orwoman found to be of homosexual orientation. All four appellants had exemplary servicerecords and in no case was it suggested that their sexual orientation had affected theirability to carry out their duties or had had any adverse effect on discipline in the units inwhich they served. The appellants sought judicial review of the policy, contending interalia that (i) in restricting as it did, the appellants fundamental human rights anddiscriminating against them on the grounds of sexual orientation, the policy was in breachof both the European Convention for the Protection of Human Rights and Fundamental

contd...


If the Convention for the Protection of Human Rights and FundamentalFreedoms were part of our law and we are accordingly entitled to askwhether the policy answers a pressing social need and whether therestriction on human rights involved can be shown disproportionate toits benefits, then clearly the primary judgment (subject only to a limitedmargin of appreciation) would be for us and not for others; theconstitutional balance could shift.

So far as the position before the Convention was adopted (in 1996),the Judge opined that the Courts had then only to play a secondary roleand apply the Wednesbury rules. The learned Judge pointed at the limitationof the Court when he observed:

In exercising merely secondary Judgment, this Court is bound, eventhough acting in a human rights context, to act with some reticence.

On appeal, the above principles were affirmed by the Court of Appeal.41

According to Lord Bingham M.R. the Court, in the absence of theConvention was not thrown into the position of the decision-maker. LordJustice Henry further observed:

If the Convention were part of our law, then as Simon Brown LJ saidin the Divisional Court, the primary judgment on this issue would befor the judges. But Parliament has not given us that primary jurisdictionon this issue. Our present Constitutional role was correctly identifiedby Simon Brown LJ as exercising a secondary or reviewing judgment,as it is, in relation to the Convention, the only primary judicial rolelies with the Europe Court at Strasbourg.42

Thus, it may be seen that the principle of Primary review andproportionality on the one hand and the principle of secondary review andWednesbury reasonableness on the other hand gave a new dimension to

contd...

Freedoms and Council Directive (EEC)76/207 on the implementation of the principle ofequal treatment for men and women as regards access to employment, vocational trainingand promotion, and working conditions, (ii) the threshold of reasonableness should belowered to take account of the human rights dimension, and (iii) on any testof reasonableness the policy was irrational in the light of changing moral standards andthe changing treatment of homosexuals in armed forces and other related services botharound the world and in the United Kingdom. The Court held that the Ministry of Defencespolicy was lawful and dismissed the applications. Aggrieved by this decision an Appealwas filed.

41R v. Ministry of Defence Exp. Smith, (1996) 1 All ER. 257 CA; [1996] QB 517.42Id. p. 272.


Administrative Law; the former applying in the case of fundamentalfreedoms and the latter, in other cases.

Lord Justice John Dyson followed Brinds case43 in the Court of Appealand reiterated that proportionality was strictly applicable to cases with aEuropean Union dimension or subject to the Human Rights Act.44 LordJustice Dyson observed that:

the Wednesbury test is moving closer to proportionality and in somecases it is not possible to see any daylight between the two tests ... theresult that follows will often be the same whether the test that is appliedis proportionality or Wednesbury unreasonable-ness.45

In this case, the Court proceeded on the basis that the Wednesbury testdid exist. Further, the Court expressed that the correct test to be applied insuch a case, which did not involve Community law and did not involveany question of rights under the European Convention of Human Rights,was the Wednesbury test.

How did the Courts approach issues of proportionality? An answercould be seen in de Freitas v. Permanent Secretary of Ministry ofAgriculture, Fisheries, Lands and Housing.46 The Privy Council adopteda three stage test. The Court observed that in determining whether alimitation imposed by an Act, Rule or decision is arbitrary or excessive,the Court should ask itself:

whether: (i) the legislative objective is sufficiently important tojustify limiting a fundamental right; (ii) the measures designed to meetthe legislative objective are rationally connected to it; and (iii) themeans used to impair the right or freedom are no more than is necessaryto accomplish the objective.47

Subsequently, the House of Lords in R (Daly) v. Secretary of State forthe Home Department48 demonstrated how the traditional test ofWednesbury unreasonableness has moved towards the doctrine ofnecessity and proportionality. Lord Steyn in this case noted that the criteriaof proportionality are more precise and more sophisticated than traditionalgrounds of review and went on to outline three concrete differences between

43(1991) 1 All ER 720.44Ibid.45Id. para 32 and 34. See also Lord Hoffmann A Sense of Proportion, John Maurice

Kelly Memorial Lecture, University College Dublin, 1996, p. 13.46[1999] 1 AC 69.47Id. at p. 80, per Lord Clyde.48(2001) 2 AC 532.


the two:(1) Proportionality may require the reviewing Court to assess the

balance which the decision-maker has struck, not merelywhether it is within the range of rational or reasonabledecisions.

(2) Proportionality test may go further than the traditional groundsof review in as much as it may require attention to be directedto the relative weight accorded to interests and considerations.

(3) Even the heightened scrutiny test is not necessarily appropriateto the protection of human rights.49

Lord Steyn also felt that most cases would be decided in the same waywhatever be the approach that is adopted, though, he conceded that forhuman right cases, proportionality was the appropriate test. In this case,the House of Lords considered both Common Law and Article 8 of theConvention, and ruled that the policy of excluding prisoners from theircells while prison officers conducted searches, which included scrutinisingprivileged legal correspondence, was unlawful.

The Human Rights Act, 1998 and further DevelopmentsFurther development in the English Law in this field was related to the

Human Rights Act, 1998.50 In R (Alconbury Development Limited) v.Secretary of State for the Environment, Transport and the Regions51 thequestion arose as to whether the doctrine of proportionality would applyonly where fundamental human rights were in issue or in all aspects ofjudicial review. Here also the opinion of Lord Steyn regarding the principleof proportionality is noteworthy. He observed:

I consider that even without reference to the Human Rights Act, 1998the time has come to recognise that this principle is part of Englishadministrative law not only when Judges are dealing with Communityacts but also when they are dealing with acts subject to domestic law.Trying to keep the Wednesbury principle and proportionality in separatecompartments seems to me to be unnecessary and confusing52.

49Id. para 27.50This Act imposed a duty on public bodies to operate within the confines of the European

Convention on Human Rights. If they failed to do so, then their actions may automaticallybecome ultra vires and thus judicially reviewable. In principle, therefore, the Actconsiderably extended the ability of the Courts to quash administrative decisions on humanrights grounds.

51(2001) 2 All ER 929.52Id. para 51.


This opinion suggests that according to Lord Steyn, the differencebetween both these principles was in practice much less than it wassometimes suggested and whatever principle was applied, the result wasthe same. A significant question whether the principle of proportionalitywould ultimately supersede the concept of reasonableness or rationalitywas considered in R. (Association of British Civilian Internees: Far EastRegion) v. Secretary of State for Defence53 wherein it was observed:

We have difficulty in seeing what justification there now is forretaining Wednesbury test ... but we consider that it is not for thisCourt to perform burial rights. The continuing existence of theWednesbury test has been acknowledged by the House of Lords onmore than one occasion. A survey of the various judgments of theHouse of Lords, Court of Appeals, etc. would reveal for the time beingboth the tests continued to co-exist.

Later, in Huangs case,54 the House of Lords had to examine the questionwhether denial of asylum infringes Article 8 of the Human Rights Act,1998 regarding the Right to Respect Family Life. The House of Lordsruled that it was the duty of the authorities when faced with individualswho did not qualify under the rules, to consider whether the refusal ofasylum status was unlawful on the ground that it violated the individualsright to family life. A structured proportionality test55 emerged from thatdecision in the context of the violation of human rights.

It is pertinent to note here that both the cases of Daly as well as Huangwere primarily concerned with the violation of human rights under theHuman Rights Act, 1998 and demonstrated the movement away from thetraditional test of Wednesbury unreasonableness towards the test ofproportionality. However, it may not be right to conclude that the principle

53[2003] QB 1397, per Lord Justice Dyson. The Court of Appeal had to examine whetherproportionality existed as a separate ground of review in a case which does not concernCommunity law or human rights protected by the European Convention on Human Rightsas a preliminary issue. The claimants submitted that it does; but according to the Secretaryof State, the Court of Appeal was bound by previous authority to hold that it did not.

54Huang v. Secretary of State for the Home Department, (2007) 4 All ER 15 (HL).55The structured proportionality test requires the decision maker to answer the following

four questions.(1) Whether the legislative objective is sufficiently important to justify limiting a

fundamental right,(2) Whether the measures designed to meet the legislative objective are rationally

connected to it, (3) Whether the means used to impair the right or freedom are no morethan is necessary to accomplish the objective and (4) Whether a fair balance has beenstruck between the individual and the interests of the community which is inherent in thewhole of the Convention. The fourth question is also known as narrow proportionality.


of Wednesbury unreasonableness has been replaced by the doctrine ofproportionality.

Another milestone was the decision of the House of Lords in R. (Pro-life Alliance) v. BBC56. According to the Court of Appeal, the broadcaster,BBC acted unfairly in denying the Pro-life Alliance, an election broadcast.Refusing the Alliance permission to apply for judicial review, Justice ScottBaker of the High Court of Justice, (Administrative Court) said that therewas no duty to allow someone from a political party to broadcast anyimages he likes, however offensive they may be.57 A conceptual conflictbetween irrationality and proportionality could be seen in the words ofLord Walker of Gestingthorpe while allowing the appeal. According tohim, The Wednesbury test, for all its defects, had the advantage ofsimplicity. He acknowledged the fact that there existed a strong viewthat the Wednesbury rule is unsatisfactory and that it must be replaced bya much more complex and contextually sensitive approach, when humanrights are in play. But the scope and reach of the Human Rights Act is soextensive that there is no alternative. He further observed that, It mightbe a mistake, at this stage in the bedding-down of the Human Rights Act,for your Lordships House to go too far in attempting any comprehensivestatement of principle. But it is clear that any simple one size fits allformulation of the test would be impossible.58 Whatever that may be, inthe English Administrative Law, both tests, Wednesbury andproportionality co-exist. Courts have not openly held that theproportionality test may replace the Wednesbury test. Practically what isfound is that the proportionality test is applied more and more, when thereis violation of human rights and fundamental freedom and the Wednesburyfinds its presence more on the domestic law when there are violations of acitizens ordinary rights.

56[2003] 2 All ER 977. The Pro-life Alliance is a political party that campaigns forabsolute respect for innocent human life from fertilization until natural death and thereforeopposes abortion, euthanasia, destructive embryo research and human cloning. The casewas on a video that showed the results of an abortion. The video was held to violatestatutory regulations requiring public broadcast to be decent. After extensive legalproceedings, the Court of Appeal ruled in favour of the Pro Life Alliance. The disputedvideo, the House of Lords while over-ruling the said decision said, showed the productsof a suction abortion: tiny limbs, bloodied and dismembered, a separated head, their humanshape and form plainly recognizable. There are some pictures showing the results of theprocedures undertaken to procure an abortion at later stages ... They are, I think, certainlydisturbing to any person of ordinary sensibilities.

57See (Visited on August 1, 2012.)

58R. v. British Broadcasting Corporation, ex parte Prolife Alliance, [2003] UKHL 23,para 144.


In short, it may rightly be said that, the proportionality principle hasnot so far replaced the Wednesbury principle and the time has not becomeripe enough to say good bye to Wednesbury much less its burial. Asdiscussed above, in the cases of Huang and Daly, the English Courts haveconsidered both Common Law and Article 8 of the Human Rights Act,1998. Both the cases were concerned with the violation of human rightsand demonstrated a deviation from the traditional Wednesbury test ofunreasonableness and shown leniency towards proportionality. In spite ofthese cases, it is not safe to conclude that the principle of Wednesburyunreasonableness has been completely replaced by the doctrine ofproportionality in England.

In conclusion, it is appropriate to quote Wade and Forsyth59 whomodified their earlier stand60 and observed:

Notwithstanding the apparent persuasiveness of these views the coupde grace has not yet fallen on Wednesbury unreasonableness. Where amatter falls outside the ambit of the 1998 Act, the doctrine is regularlyrelied upon by the Courts. Reports of its imminent demise are perhapsexaggerated. (Emphasis supplied)

59H.W.R. Wade and C.F. Forsyth, Administrative Law, Oxford University Press (2009)at p. 314.

60See supra, n. 29.

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